M.S. v. Arkansas Department of Human Services and Minor Child
617 S.W.3d 731
Ark. Ct. App.2021Background
- Infant S.S. (b. 2/18/19) was removed after being brought to the hospital with a skull fracture and malnourishment; treating physicians found the mother's explanation inconsistent with injuries. DHS filed for emergency custody and S.S. was adjudicated dependent-neglected.
- S.S. was placed provisionally with Misty and Ronnie Walls (the putative father's mother and stepfather). The case goal initially was reunification with concurrent relative placement; later changed to termination/adoption after lack of parental progress.
- Mother M.S., a minor herself, initially visited but then absented herself and was a runaway for ~7 months, had no contact with DHS or S.S., and was served the termination petition by warning order. She later reappeared after giving birth to a second child.
- At the termination hearing the trial court found three statutory grounds (unchallenged on appeal): failure to remedy conditions after 12 months, abandonment, and aggravated circumstances; the court also found termination was in the child’s best interest.
- Caseworker, CASA, and adoption specialist recommended termination: child is thriving with the Walls, adoptable, and returning to mother posed potential harm given unexplained skull fracture and the mother’s prior abandonment/noncompliance.
- Putative father Triston Rea never established paternity; his rights were terminated. The court held the Walls are not relatives of S.S. under the kinship statute because paternal status was not established.
Issues
| Issue | Plaintiff's Argument (M.S.) | Defendant's Argument (DHS) | Held |
|---|---|---|---|
| Whether termination was supported by sufficient evidence of the child’s best interest | Termination was unnecessary because S.S. already lived in a stable placement with the Walls; a less-restrictive permanent relative placement was available and the parent–grandparent relationship should weigh against termination | Termination was in S.S.’s best interest due to serious unexplained injury, mother’s abandonment/nonparticipation, limited recent contact, and need for permanency; Walls are not relatives under statute | Affirmed. Best-interest finding not clearly erroneous; termination justified for permanency and safety |
| Whether the statutory preference for placing a child with a relative (Ark. Code §9-28-105) required denying termination / granting relative placement | The Walls are paternal grandparents and thus entitled to preference for permanent relative placement | DHS: Walls are not "relatives" under the statute because the putative father never established paternity; therefore the statutory preference does not apply | Held: Walls are not relatives as defined; the relative-placement statute is inapplicable |
| Applicability of Cranford and Bunch precedent to reverse termination because child resided with grandparents | M.S. relied on Cranford and Bunch (where children were with grandparents and reversals were ordered) to argue reversal here | DHS: Those cases are distinguishable because the caregivers here are not legally grandparents/relatives; factual differences justify affirmance | Held: Cranford and Bunch are distinguishable and not controlling; reversal not warranted |
Key Cases Cited
- Mitchell v. Ark. Dep't of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851 (standard of review in termination appeals is de novo)
- Musick v. Ark. Dep't of Human Servs., 2020 Ark. App. 87, 595 S.W.3d 406 (clear-and-convincing-evidence standard explained)
- M.T. v. Ark. Dep't of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (statutory requirements for termination must be proved by clear and convincing evidence)
- Suster v. Ark. Dep't of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (grandparents' rights are derivative of their child's parental rights)
- Cranford v. Ark. Dep't of Human Servs., 2011 Ark. App. 211, 378 S.W.3d 851 (reversal where child placed with actual grandparent and best-interest finding was erroneous)
- Bunch v. Ark. Dep't of Human Servs., 2017 Ark. App. 374, 523 S.W.3d 913 (reversal where children remained in meaningful relationship with maternal grandmother)
- Lively v. Ark. Dep't of Human Servs., 2015 Ark. App. 131, 456 S.W.3d 383 (child's relationship with relatives is a factor in best-interest analysis)